Feijoo v. Massachusetts Department of Corrections et al

Filing 46

Chief Judge Patti B. Saris: PROCEDURAL ORDER entered. Mr. Feijoo's death affects the viability of this lawsuit. If a timely motion for substitution is not filed with the Court, this action may be dismissed pursuant to Rule 25 of the Federal Rules of Civil Procedure.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
HUMBERTO FEIJOO,
Plaintiff,
v.

Civil Action No. 13-11432-PBS

MASSACHUSETTS DEPARTMENT
OF CORRECTIONS, ET AL.,
Defendants.
PROCEDURAL ORDER
March 4, 2015
SARIS, C.J.
Plaintiff Humberto Feijoo, initially proceeding pro se,
filed this civil rights action under 42 U.S.C. § 1983 against the
Massachusetts Department of Correction and others.
No. 1.

See Docket

Plaintiff has been represented by pro bono counsel since

October 2013, and last month Magistrate Judge Dein allowed the
parties’ joint motion to continue mediation proceedings to May
13, 2015.

See Docket No. 44.

On February 27, 2015, the defendants filed a Suggestion of
Death notifying the Court that Mr. Feijoo had died on February
23, 2015.

See Docket No. 45.

The certificate of service

accompanying the Suggestion of Death of Plaintiff Humberto Feijoo
states that on February 27, 2015, copies were electronically
served on plaintiff’s counsel of record.

Id.

Mr. Feijoo's death affects the viability of this lawsuit.
Pursuant to Federal Rule of Civil Procedure 25(a), "[i]f a party
dies and the claim is not extinguished, the court may order
substitution of the proper party."

If a motion for substitution

of the party is not made within 90 days after service of a
statement noting the death, "the action by ... the decedent must
be dismissed."

Fed. R. Civ. P. 25(a)(1).

This 90 day time

period does not begin to run until the decedent's representative
or successor is properly served with the statement noting the
death thereby identifying and notifying the substitutable party.
In re C.R. Stone Concrete Contractors, Inc., 462 B.R. 6, 18
(Bankr. D. Mass. 2011).
Accordingly, if a timely motion for substitution is not
filed with the Court, this action may be dismissed pursuant to
Rule 25 of the Federal Rules of Civil Procedure.
SO ORDERED.
/s/ Patti B. Saris
PATTI B. SARIS
Chief, U.S. DISTRICT JUDGE

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